Citation Nr: 0124301
Decision Date: 10/09/01 Archive Date: 10/09/01
DOCKET NO. 99-21 370 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUE
Whether new and material evidence sufficient to warrant
reopening of the appellant's claim for entitlement to service
connection for the veteran's cause of death has been
submitted.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
M. J. Bohanan, Counsel
INTRODUCTION
The veteran served on active duty from June 1966 to June
1968.
This appeal arises from a May 1999, Department of Veterans
Affairs (VARO), Chicago, Illinois rating decision, which
denied reopening the appellant's claim for entitlement to
service connection for the veteran's cause of death due to
herbicide exposure, on the basis that new and material
evidence sufficient to warrant reopening of the appellant's
claim had not been submitted.
FINDINGS OF FACT
1. The Board denied the appellant's claim for entitlement to
service connection for the cause of the veteran's death in
a final November 6, 1997 decision.
2. Evidence submitted with regard to the appellant's request
to reopen her claim for service connection for the
veteran's cause of death since the Board's November 6,
1997 decision includes duplicate private treatment
records, additional lay statements by the appellant, and
other private and VA medical opinion evidence.
3. The veteran died on June [redacted], 1986; the immediate cause of
death as listed on his certificate of death was
respiratory arrest, due to or as a consequence of squamous
cell carcinoma of the neck and lungs.
4. Evidence provided since the Board's November 6, 1997
decision is new and, when viewed by itself or in the
context of the earlier evidence of record, is of
sufficient significance that it must considered in order
to fairly decide the merits of the claim.
CONCLUSION OF LAW
New and material evidence sufficient to reopen the claim for
entitlement to service connection for the veteran's cause of
death has been submitted. 38 U.S.C.A. § 5108 (West 1991);
38 C.F.R. §§ 3.156(a), 20.1100 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The issue before the Board is whether the appellant has
submitted new and material evidence sufficient to reopen her
previously denied claim of entitlement to service connection
for the veteran's cause of death. The last final decision on
this issue was a November 6, 1997 Board decision.
38 U.S.C.A. §§ 5108, 7104 (West 1991).
The appellant contends that the veteran's death in June 1986
was due to his exposure to Agent Orange herbicide during his
service in Vietnam, as he was in an area where Agent Orange
was sprayed. She specifically contends that the veteran
developed lymphangiosarcoma, a disease presumptively
associated with in-service herbicide exposure, and that this
lymphangiosarcoma likely contributed to cause the veteran's
death. She wrote that, since service, the veteran had
experienced severe health problems.
As a preliminary matter, by virtue of the Statement of the
Case issued during the pendency of the appeal, the appellant
has been given notice of the information, medical evidence,
or lay evidence necessary to warrant new and material
evidence sufficient to warrant reopening of her claim for
entitlement to service connection for the veteran's cause of
death. There is no reasonable possibility that further
development would result in the procurement of additional
pertinent evidence for the purpose of reopening her claim.
Once a decision is final, absent submission of new and
material evidence, the claim may not thereafter be reopened
or readjudicated by VA. 38 U.S.C.A. § 5108 (West 1991); 38
C.F.R. § 3.156(a) (2000). New and material evidence means
evidence not previously submitted to agency decision makers
that bears directly and substantially upon the specific
matter under consideration, which is neither cumulative nor
redundant, and which by itself and in connection with
evidence previously assembled is so significant that it must
be considered to decide fairly the merits of the claim. 38
C.F.R. § 3.156(a) (2000).
A three pronged analysis is used to determine whether
evidence is "new and material" as defined by 38 C.F.R. §
3.156(a). First, it must be determined whether the newly
presented evidence "bears directly and substantially upon the
specific matter under consideration," i.e., whether it is
probative of the issue at hand. Secondly, the evidence must
be shown to be actually "new," that is, not of record when
the last final decision denying the claim was made, and
finally, a determination must be made as to whether the
evidence "is so significant that it must be considered in
order to fairly decide the merits of the claim." See Hodge
v. West, 155 F.3d 1356, 1359 (Fed. Cir. 1998). New evidence,
submitted to reopen a claim, will be presumed credible solely
for the purpose of determining whether the claim has been
reopened. Justus v. Principi, 3 Vet.App. 510, 513 (1992).
If all three tests are satisfied, the claim must be reopened.
Hodge, supra.
Service connection for the cause of the veteran's death may
be granted if a disorder incurred in or aggravated by service
either caused or contributed substantially or materially to
cause death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R.
§ 3.312 (1999); see Harvey v. Brown, 6 Vet. App. 390, 393
(1994). A service-connected disability will be considered as
the principal (primary) cause of death when such disability,
singly or jointly with some other condition, was the
immediate or underlying cause of death or was etiologically
related thereto. 38 C.F.R. § 3.312(b); see Ashley v. Brown,
6 Vet. App. 52, 57 (1993). A contributory cause of death is
inherently one not related to the principal cause. In
determining whether the service-connected disability
contributed to death, it must be shown that it contributed
substantially or materially, that it combined to cause death,
or that it aided or lent assistance to the production of
death. 38 C.F.R. § 3.312(c); see Schoonover v. Derwinski, 3
Vet. App. 166, 168-69 (1992). It is not sufficient to show
that it casually shared in producing death, but rather it
must be shown that there was a causal connection. 38 C.F.R.
§ 3.312(c).
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). For the showing of
chronic disease in service, there is required a combination
of manifestations sufficient to identify the disease entity,
and sufficient observation to establish chronicity at the
time. 38 C.F.R. § 3.303(b). If chronicity in service is not
established, a showing of continuity of symptoms after
discharge is required to support the claim. Id. Service
connection may also be granted for any disease diagnosed
after discharge when all of the evidence establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
A veteran who, during active military, naval, or air service,
served in the Republic of Vietnam during the Vietnam era and
currently has one of the presumptive diseases listed at
38 C.F.R. § 3.307(a), shall be presumed to have been exposed
during such service to an herbicide agent, unless there is
affirmative evidence to establish that the veteran was not
exposed to any such agent during that service. 38 C.F.R. §
3.307(a) (2000). Angiosarcoma (which includes
hemangiosarcoma and lymphangiosarcoma) is one of these
presumptive diseases. 38 C.F.R. § 3.309(e) (2000).
Even if an appellant is found not entitled to a regulatory
presumption of service connection, the claim must still be
reviewed to determine if service connection can be
established on a direct basis. See Combee v. Brown, 34 F.3d
1039 (Fed Cir. 1994) (holding that the Veterans' Dioxin and
Radiation Exposure Compensation Standards (Radiation
Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724,
2727- 29 (1984), does not preclude appellant from
establishing service connection with proof of actual direct
causation).
The veteran died on June [redacted], 1986; the immediate cause of
death as listed on his certificate of death was respiratory
arrest, due to or as a consequence of squamous cell carcinoma
of the neck and lungs.
Pertinent evidence associated with the claims file since the
Board's November 6, 1997 includes duplicate private treatment
records, additional lay statements by the appellant, and
other private and VA medical opinion evidence. In an October
1998 letter, the veteran's private physician, Richard Knop,
M.D., Ph.D., wrote that he was an oncologist employed by
Evanston Hospital in Evanston, Illinois, and had treated the
veteran for about a year prior to his death on June [redacted], 1986.
Dr. Knop wrote that, according to his physical examination
summary for the period from September 27, 1985 to October 4,
1985, the veteran had a 1 x 1 cm. maxillary lymphadenopathy,
and it was his opinion that it was "highly probable that
[the veteran's] lymphadenopathy was lymphangiosarcoma" and
it was also "highly probable that this lymphangiosarcoma was
the primary site of [the veteran's] cancer, until it
metastasized to other parts of his body, causing death."
In a May 1999 letter, Dr. Knop also wrote that he had
reviewed the veteran's medical records, information that the
veteran was in the area of Agent Orange distribution in
Vietnam, and the fact that the veteran sustained shrapnel
injuries and burns. He wrote that multiple types of cancer
could have co-existed from the beginning, so that the
veteran's chemotherapy selectively killed his squamous cell
carcinoma, leaving behind a resistant lymphoma. He concluded
with the opinion that the veteran's cancer was
"multifactorial." His final opinion was that, based on the
history of exposure to Agent Orange, the veteran's death, in
addition to the relationship with squamous cell carcinoma,
was related to a second malignancy, most likely a
lymphosarcoma.
This evidence is new and bears directly and substantially
upon the specific matter under consideration. Moreover, it
is so significant that it must be considered to decide fairly
the merits of this claim. The medical opinions of Dr. Knop
therefore constitute new and material evidence under 38
C.F.R. § 3.156(a), and the Board is required to reopen the
previously denied claim of entitlement to service connection
for the veteran's cause of death.
ORDER
Having submitted new and material evidence, the appellant's
claim of entitlement to service connection for the veteran's
cause of death is reopened, but to this extent only, granted.
REMAND
Upon review, the veteran's medical record appears incomplete.
Specifically, a billing statement from Dr. Knop indicates
numerous office visits by the veteran during the period from
January 1986 to May 1986. However, the referable office
treatment records have not yet been obtained. Further,
although hospitalization reports from Evanston Hospital have
been associated with the claims file, it does not appear that
the daily treatment records for the veteran's periods of
admission have been obtained. The duty to assist includes
the duty to obtain all relevant treatment records referred to
by the appellant. Littke v. Derwinski, 1 Vet.App 90 (1991).
There has also been a significant change in the law during
the pendency of this appeal. On November 9, 2000, the
President signed into law the Veterans Claims Assistance Act
of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000).
This law redefines the obligations of VA with respect to the
duty to assist and includes an enhanced duty to notify a
claimant as to the information and evidence necessary to
substantiate a claim for VA benefits. This law also
eliminates the concept of a well-grounded claim and
supersedes the decision of the Court in Morton v. West, 12
Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No.
96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order),
which had held that VA cannot assist in the development of a
claim that is not well grounded. This change in the law is
applicable to all claims filed on or after the date of
enactment of the VCAA, or filed before the date of enactment
and not yet final as of that date. Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, § 7, subpart
(a), 114 Stat. 2096, 2099-2100 (2000). See also Karnas v.
Derwinski, 1 Vet. App. 308 (1991).
Because of the change in the law brought about by the VCAA, a
remand in this case is required for compliance with the
notice and duty to assist provisions contained in the new
law. In addition, because the RO has not yet considered
whether any additional notification or development action is
required under the VCAA, it would be potentially prejudicial
to the appellant if the Board were to proceed to issue a
decision at this time. See Bernard v. Brown, 4 Vet. App. 384
(1993); VA O.G.C. Prec. Op. No. 16-92 (July 24, 1992)
(published at 57 Fed. Reg. 49,747 (1992)).
Accordingly, this case is REMANDED for the following:
1. VARO should contact the appellant and
request that, in addition to Dr. Knop,
she identify all medical care providers
who treated the veteran. After securing
any necessary releases, VARO should
obtain copies of all treatment records
referred to by the appellant, including
those of Dr. Knop and the additional
hospitalization records from Evanston
Hospital, which have not been previously
obtained. These records should then be
associated with the claims folder.
2. VARO must then review the claims file
and ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475 is completed. In
particular, VARO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. §§ 5102,
5103, 5103A, and 5107) are fully complied
with and satisfied. See also implementing
regulations at 66 Fed.Reg. 45,620 (Aug.
29, 2001) (to be codified at 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a)).
3. Thereafter, VARO should readjudicate
the appellant's claim for service
connection for the veteran's cause of
death. If the benefit sought on appeal
remains denied, the appellant and the
appellant's representative, if any, should
be provided a supplemental statement of
the case (SSOC). The SSOC must contain
notice of all relevant actions taken on
the claim for benefits, to include a
summary of the evidence and applicable law
and regulations considered pertinent to
the issue currently on appeal. An
appropriate period of time should be
allowed for response.
The case should then be returned to the Board, if in order.
The appellant need take no action unless otherwise notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2001) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
G. H. SHUFELT
Member, Board of Veterans' Appeals